Brigham Young University College of Family, Home, & Social Sciences

Constitution Day

People may have forgotten about the nomination of Supreme Court Justice Neil Gorsuch that occurred only months ago, but they will probably not be able to forget his influence on the Court years from now, according to experts at a Constitution Day Panel discussion in September. Gorsuch, one of the youngest appointed Supreme Court justices at the age of 49, was the primary focus of the event, which was hosted by BYU’s Law School as part of events around the country held to commemorate the signing of the Constitution of the United States in 1787. At the panel, undergraduates, law students, and experienced lawyers and attorneys alike came together to hear BYU professors discuss Justice Gorsuch’s past influences and opinions and how they might affect his decisions as a Supreme Court Justice.

With the change of a Supreme Court Justice comes changes in the cases seen, the written product, and the discussions had within the court. Previous Justice Antonin Scalia was a strong voice within the court, often writing his opinions separately and influencing an entire generation of lawyers, including Justice Gorsuch. In his new position, Justice Gorsuch’s stand as a textualist, originalist, and believer in natural law will all influence his voice concerning these court actions. Specifically, as discussed in the panel, Gorsuch and his past experience will influence his actions on the following topics:

Property Rights

In the panel, Professor John Fee stated that he would expect Justice Gorsuch to act similarly to Justice Scalia in regards to property rights. Based at Gorsuch’s comments in an email concerning the Kilo v. New London case in 2005, in which the Court held that the general benefits a community enjoyed from economic growth qualified private redevelopment plans as a permissible “public use,” the Justice is a strong defendant of property rights and holds true to his value of the plain, textual meaning of the Constitution.

Administrative Law and Division of Powers

Federal Indian Law and Public Lands

As a Westerner and a past judge in the US Court of Appeals 10th Circuit, Gorsuch has a very diverse cultural perspective and familiarity with Indian law. While he has not participated in all aspects of Indian law, the 10th Circuit oversees a region with a large number of tribes and Gorsuch has written ten opinions on cases regarding these matters. These opinions include a mix of winning and losing opinions, but the National Congress of American Indians openly supported Gorsuch’s nomination. Gorsuch has a clear understanding of the legal status of tribes and the need to define Indian country, an understanding that will shape his court decisions.

Religious law

While Professor Elizabeth Clark emphasized that religious law is a very case-by-case field, we have a general understanding for Justice Gorsuch’s approach to religious law through his experience and case judgments in the 10th Circuit. Gorsuch tends to look to history for interpretations regarding religious law. In the past, he has also tended to be more comfortable with public religious expression. In concerns to statutory protections of religious freedom, he tends to look at both the spirit and the letter of the law, a value he’s shown through his review of prisoner cases and allowing prisoners to keep their religious rights. Gorsuch also recognizes sincere religious beliefs and strives to be a consensus builder within the court.

Justice Gorsuch has the potential for a very long Supreme Court record. While BYU professors have given their best predictions on his Supreme Court action, only time will tell the impact Neil Gorsuch will have on the Supreme Court and national law. The good thing is that while Gorsuch may not write with Justice Scalia’s humor, he explains situations and writes his opinions in a very understandable and accessible way, facilitating the process of understanding Constitutional rights for all United States citizens.

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On Friday September 22, 2017 from 1-2 pm, the BYU Law School will host a panel to discuss A Changing Supreme Court: The Future of Constitutional Interpretation in the Moot Court Room (Room 303) of the J. Reuben Clark Building (JRCB). This panel is part of both the University’s Constitution Day celebration and the Law School’s annual Supreme Court Review, at which former Supreme Court clerks on the BYU faculty and other expert faculty discuss the direction of the Supreme Court and some of the important decisions of the Supreme Court’s most recent term.

Students, faculty members, and Americans—anyone affected by the Constitution—will benefit from learning about how the future of Constitutional interpretation might affect their lives.

The 1 pm panel will feature BYU Law Professors Elizabeth Clark, John Fee, Aaron Nielson, Michalyn Steele, and Lisa Grow Sun, who will discuss how the recent appointment of Justice Neil Gorsuch and other potential future appointments will affect the Court’s constitutional interpretation across different areas of the law, including issues of separation of powers and the administrative state, freedom of religion, federal Indian law, and criminal law. From 2:10-3:10 pm, there will be a final panel focused on significant opinions from the 2016 Supreme Court Term.

This year’s Supreme Court Review also features a keynote address from 11:50-12:50 pm by BYU Law Professor Justin Collings, who will explore the ways in which constitutional courts invoke–and help shape–national memory in the process of constitutional interpretation. Specifically, his talk will discuss the ways that the constitutional courts of Germany, the United States, and South Africa have engaged with the legacies, respectively, of Nazism, slavery, and apartheid.

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To the Founding Fathers, and James Madison in particular, slavery was never solely a moral issue, says David Waldstreicher, one of academia’s foremost scholars on the slave issue in early America. At a Constitution Day event on campus recently, he spoke on the connection between Madison, the American Constitution, and the practice of slavery, which has come to be a great blight on the country’s history.

James Madison, Courtesy of Flickr.

Though Madison himself owned many slaves, he did not approve of the practice. “There was no point in his public life that he did not believe that slavery was wrong,” Waldstreicher said. “This was obvious early on and he never changed his mind. He was principled yet flexible; optimistic yet capable of a knowing realism.” Madison always realized slavery was an important factor in local and national politics, and though it was “an embarrassment on the international stage,” he knew that “slavery would be factored into statecraft in some fashion.” Thus, as a result of the Constitutional Convention, Madison drafted the infamous 3/5ths compromise, and spoke highly of it as late as 1829.

The compromise reads: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” That said, Madison ensured in the language of the constitution that slavery would not be expressly written in. “The constitution’s virtues, were, not surprisingly, Madison’s virtues,” Waldstreicher said. Thus, throughout the course of the ratification process, people attacked him as being both pro- and anti-slavery.

David Waldstreicher, Courtesy of CUNY.

“In the end,” Waldstreicher asserted, “Madison was comfortable. The political ramifications of abolishment would have been severe, and for such a young nation, could have proved fatal. We must see Madison as having played a pivotal role in history not just because of his brilliance,” Waldstreicher said, “but because . . . he helped the nation have its slavery and its anti-slavery too.” At the present time, when many still perceive race relations to be a divisive issue, it is at least interesting to look at it from a constitutional perspective, to the extent that that leads to more informed discussions of where we’ve been as a country, and where we can go.

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Many of the Founding Fathers of the United States, despite owning slaves themselves, despised the practice of slavery. In his initial draft of the Declaration of Independence, Thomas Jefferson condemned the injustice of the slave trade and, by implication, slavery. Nonetheless, the South had become reliant on slavery, and political unity was a necessity for young America’s success. Thus, the shameful institution weaseled its way into the United States Constitution, and there remained unchallenged until the 13th Amendment was ratified in 1865. David Waldstreicher is one of academia’s foremost scholars on the slave issue in early America, and will speak on slavery and the Constitution on Thursday, September 15th, at 11:00 a.m. in the HBLL Auditorium.

In particular, he will speak on “James Madison’s Constitution and the Problem of Slavery.” Madison was also a Founding Father who seemed unable to come to terms with slavery, despite the fact that he owned nearly 100 of them at the time of his death. BYU associate professor of history Matthew Mason, who studies slavery and the early U.S. republic, is optimistic about the upcoming lecture. “My hope for this year’s event,” he says, “is that a broad community of students and others at BYU will be able to think in more informed ways about the complex relationship between slavery and the founding of the United States. This will fulfill a key purpose of Constitution Day, which…is to help people know more about—and consequently come to a fuller appreciation of—the founding of the United States and its ongoing impact. The ongoing importance of racial prejudice in our national life is just one way this lecture’s exploration of slavery and the founding should be of wide interest.”

Dr. Waldstreicher is a Distinguished Professor of History at the City University of New York. He holds a PhD from Yale University, and has previously served as a professor at Bennington College, Yale, Temple University, and the University of Notre Dame. He is the author of several books, including Slavery’s Constitution: From Revolution to Ratification, which Mason opines is “the best book-length treatment of how slavery and the drafting and ratification of the Constitution interrelated.” He is on the editorial board of Reviews in American History and is co-editor of the Early American Studies book series at the University of Pennsylvania Press.